People ex rel. Merchants' National Bank v. Coleman — 2 N.Y. St. Rep. 615

Majority

p. 615

People ex rel. The Merchants’ National Bank, Resp’t, v. Michael Coleman and others, Commissioners of Taxes, App’lts. Same, Resp’ts, v. Board of Aldermen of the City of New York, App’lt.^[1]

(Supreme Court, General Term, First Department,

Filed June 28, 1886.)

Headnote

Certiorari, writ of—Taxes and assessments—When cannot be reviewed by certiorari under Laws 1880, CHAP. 269, § 1.

The proceedings to review asssessments by certiora/rl, under Laws 1830, ■ chapter 269, § 1, is in its language confined to the person or corporation assessed and claiming to ho aggrieved; but a corporation cannot íevicv under it the tax imposed upon the shares of the stockholders, because the tax would he ag-iinst the property of the persons who were stockholders in the corporation, and they were the only persons who could be aggrieved by the tax.

• Appeal from an order denying a motion to quash a writ of certiorari. ■ •

David J. Dean, for app’lts; John E. Burrill, for resp’t.

The writ of certiorari was issued at the instance of the relator to review the legality of an assessment for a tax proposed to be imposed upon the shares of the stockholders of the bank. It was issued under the authority of section 1, chapter 269 of the Laws of 1880, allowing a writ of this description; to review the assessment of the real and personal property, for the purposes of taxation, on the petition, duly verified, of any poison or corporation assessed and claiming to be aggrieved. The proceeding by this section of the act is in its language confined to the person or corporation assessed and claiming to be aggrieved, while the assessment which it was the design of this writ to review was not against the corporation, or its property, but it was against the property of the persons who were stockholders in the corporation, and they were the only individuals who could be aggrieved by the assess - ment. The cases of Pelton v. National Bank and Cummings v. National Bank ( 101 U. S. Rep., 143 , 153), Hills v. Exchange Bank (105 id., 319), and Boyer v. Boyer (313 id., 689) have been assumed to be in conflict with this construction of the statute, but they are not, for in those cases neither this statutory provision, nor any other resembling it, was brought into controversy. They did not proceed upon the writ of certiorari, but actions were maintained in each of them to restrain the collection of taxes, and-that, it was considered, might be done by the banks on

p. 616

"behalf of their stockholders, under the general principles applicable to actions in equity, and such provisions as imposed a duty upon the association intended to be observed for the security and certainty of the collection of the taxes. This application proceeded on no such principle, but solely and wholly upon the provisions of the statute, and that it was not authorized by the bank was considered and held in People v. Wall Street Bank ( 39 Hun, 525 ).

The wrib was issued without authority, and the order denying the defendants’ motion to quash it should be reversed, with costs, and an order to that effect directed in the proceeding.

Brajdy, J., concurs.

Note.—Appeal from an order denying a motion to quash a writ of certiorari.

David J. Dean, for app’lt; John E. Burrill, for resp't.

Daniels, J.—This writ was issued to accomplish the same result as that which was issued in the proceedings against the commissioi.ers of taxes. As that could not he sued otit and prosecuted by the bank, it follows that the .writ In ihis proceeding must fail for the same reason. The order on which the appeal has been taken should be reversed, but under the circumstances without costs.

Brady, J., concurs.